SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered December 7, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its motion for summary judgment on the ground that it had “failed to establish its prima facie case through the affidavit annexed to its motion papers.”

Plaintiff’s affiant stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery, if either, was used in this case. Accordingly, the affidavit did not establish that the supplies at issue had been delivered to plaintiff’s assignor, and plaintiff’s motion for summary judgment was properly denied (see Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 30 Misc 3d 142[A], 2011 NY Slip Op 50315[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 21, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 2, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established
its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claims and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing [*2]that the supplies were not medically necessary was unrebutted by plaintiff.

As plaintiff has not challenged the Civil Court’s finding in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 21, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 20, 2010, deemed from a judgment of the same court entered February 8, 2010 (see CPLR 5520 [c]). The judgment, entered pursuant to the January 20, 2010 order granting defendant’s application to dismiss the complaint, awarded defendant the principal sum of $50.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s application to dismiss the complaint based upon plaintiff’s noncompliance with a conditional order of preclusion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken (see CPLR 5520 [c]).

After plaintiff had provided written responses to defendant’s discovery demands, defendant moved to compel plaintiff to provide more complete responses to its discovery demands. By order entered April 30, 2008, the Civil Court (Diane A. Lebedeff, J.) directed plaintiff to produce Dr. McGee for a deposition, and to provide management, lease and billing agreements. Thereafter, defendant moved to dismiss the complaint due to plaintiff’s failure to comply with the April 2008 order. By order entered August 5, 2008, the court (Thomas D. [*2]Raffaele, J.) again directed plaintiff to produce Dr. McGee for a deposition, and to provide management, lease and billing agreements. In November 2008, defendant moved to dismiss the complaint due to plaintiff’s failure to comply with the prior two orders. In opposition to defendant’s motion, plaintiff stated that it had served defendant with full and complete responses to its discovery demands. By order dated November 17, 2008, the court (Leslie J. Purificacion, J.) stated that the complaint “shall be dismissed” unless plaintiff provides management, lease and billing agreements within 14 days and “produces Dr. McGee for a deposition within 45 days thereafter.” After defendant had filed an affidavit of noncompliance with the November 17, 2008 order, the court (Cheree A. Buggs, J.), by order dated January 20, 2010, dismissed the complaint.

Plaintiff contends on appeal that the November 2008 order should be vacated because plaintiff’s “discovery responses made it explicitly clear that no management agreements exist or are in [plaintiff’s] possession, and written billing agreements were never entered into between [plaintiff] and any other party”; that it was never in possession of a lease agreement; and that its representatives had testified at numerous depositions in other actions that the lease agreement was between landlord and a third party. At the outset, we note that plaintiff never asserted this argument in the Civil Court. In any event, a review of plaintiff’s responses to defendant’s discovery demands reveals that plaintiff did not provide full and complete responses to the demands, and never clearly indicated that no management, lease or billing agreements existed. As plaintiff has failed to comply with the court’s November 17, 2008 order and as plaintiff’s remaining contentions lack merit or are unpreserved for appellate review, we find no basis to disturb the judgment.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: December 21, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 30, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.
A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). In order for the claim form to constitute prima facie proof of the fact and the amount of the loss sustained, the affidavit submitted by a provider in support of its motion for summary judgment must lay a sufficient foundation to establish that the claim form annexed thereto is admissible under the business records exception to the hearsay rule, which allows a document to be used as proof of the “act, transaction, occurrence or event” recorded in the document (CPLR 4518 [a]; see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Plaintiff’s submission of a third-party’s affidavit failed to demonstrate that the UB-04 form, which was incorporated by reference into the NF-5 hospital facility form and which listed [*2]the services provided by the hospital, was plaintiff’s business record and, therefore, was admissible as proof that those services were rendered (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U]). Consequently, plaintiff did not establish its prima facie entitlement to summary judgment as a matter of law, and its motion for summary judgment is denied.

In addition, a review of the record indicates that defendant is not entitled to summary judgment dismissing the complaint, as defendant did not establish, as a matter of law, that the assignor was not an eligible injured person because she did not reside in the insured’s household on the date of the accident (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]; see generally Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Insurance Department Regulations (11 NYCRR) § 65-1.1 (d) defines an eligible injured person as, among other things, a child who regularly resides in the insured’s household even if he or she is temporarily living elsewhere. Consequently, as the affidavit of defendant’s investigators alleged
that the assignor had, at some point, resided with her father, the insured, defendant’s cross motion was properly denied.

Tanenbaum, J.P., Nicolai and Molia, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 26, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, three affirmed peer review reports, each of which set forth a factual basis and a medical rationale for the doctors’ determination that there was a lack of medical necessity for the services rendered. Defendant’s showing of a lack of medical necessity was not rebutted by plaintiff. As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 6, 2010. The judgment, after a nonjury trial, awarded plaintiff the total sum of $1,898.84.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the Civil Court essentially precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered. Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of the subject claim was based, should have been permitted to testify as to her opinion as to the medical necessity of the supplies at issue in this case, which testimony would be limited to the basis for the denial as set forth in the original peer review report (Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]; see also Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Therefore, a new trial is required.

We note that, contrary to plaintiff’s argument below and on appeal, the April 10, 2008 order denying plaintiff’s motion for summary judgment did not make an explicit or implicit CPLR 3212 (g) finding that there were any facts that had been established for all purposes in the action (see Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 34 [App Term, 2d & 11th Jud Dists 2007]). Therefore, upon the new trial, plaintiff will be required to introduce evidence to establish its case (id.).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial in accordance with this decision. [*2]

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 2, 2010, deemed from a judgment of the same court entered May 24, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 2, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,142.

ORDERED that the judgment is reversed, without costs, the order entered March 2, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered awarding plaintiff the principal sum of $1,142, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied the claim at issue, on the ground of lack of medical necessity, in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers an affirmed peer review report, which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies provided (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A.
Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op [*2]51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). While plaintiff asserted that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was placed on the report by the doctor who had performed the peer review or at his direction (see Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; cf. Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51540[U] [App Term, 2d & 11th Jud Dists 2008]; Radiology Today, P.C. v GEICO Ins. Co., 20 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2008]). Thus, defendant established its entitlement to summary judgment dismissing the complaint.

Accordingly, the judgment of the Civil Court is reversed, the order entered March 2, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 12, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint. The appeal is deemed from a judgment of the same court entered July 28, 2010, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted defendant’s motion for summary judgment dismissing the complaint is vacated, and defendant’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order as granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The sole argument raised on appeal is that defendant was not entitled to summary judgment because defendant’s denial of claim form was untimely. Although this argument is raised for the first time on appeal, the affidavit of defendant’s claims examiner admits that the denial of claim form was mailed more than 30 days after defendant had received plaintiff’s claims. As a result, “this issue may be raised for the first time on appeal, since it is one of law appearing on the face of the record and it could not have been avoided had it been raised at the proper juncture” (Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; see also Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]). Inasmuch as defendant’s moving papers were insufficient to establish that defendant had timely mailed requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that its 30-day claim determination period was tolled. In light of the foregoing, defendant’s motion for summary judgment should have been denied. [*2]

Accordingly, the judgment is reversed, so much of the order as granted defendant’s motion for summary judgment dismissing the complaint is vacated, and defendant’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 16, 2010, deemed from a judgment of the same court entered May 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 16, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,365.75.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, while plaintiff demonstrated that the claims had not been paid, it failed to demonstrate that, with respect to its claim seeking $1,291, defendant’s denial of claim form was conclusory, vague or without merit as a matter of law. Consequently, as defendant argues, plaintiff did not establish its prima facie case with respect to this claim. As to plaintiff’s claim for $1,074.75, a triable issue of fact exists since defendant demonstrated that its time to pay or deny the claim was tolled and that defendant had timely denied the claim on the ground [*2]that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs) (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Accordingly, plaintiff was not entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s contention that its cross motion for summary judgment dismissing the complaint should have been granted lacks merit. Inasmuch as defendant failed to proffer evidence in admissible form from someone with personal knowledge of the assignor’s nonappearances at the IMEs, defendant failed to establish that the assignor had failed to appear at the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; see also LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered February 2, 2010. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking to vacate the notice of trial, and granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery demands to the extent of directing plaintiff to “respond to defendant’s written demands and provide management agreements, lease agreements, and the names/addresses of all landlords.”

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to its discovery demands is granted to the extent of directing plaintiff to respond to defendant’s written demands, and to provide defendant with management agreements, lease agreements, and the names and addresses of all landlords, limited to the time period between January 1, 2002 and May 2, 2005; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order as granted the branch of defendant’s motion seeking to vacate the notice of trial, and granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery demands to the extent of directing plaintiff to “respond to defendant’s written demands and provide management agreements, lease agreements, and the names/addresses of all landlords.”

Plaintiff contends on appeal that the Civil Court should not have granted the branch of defendant’s motion seeking to vacate the notice of trial. A review of the record, however, indicates that, in its affirmation in opposition to defendant’s motion, plaintiff failed to argue that the notice of trial should not be vacated. Consequently, this contention is unpreserved for appellate review. In any event, since defendant timely moved to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]), which notice contains the erroneous statement that discovery has been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt, P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], [*2]2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]), the notice of trial was properly vacated (see Gregory v Ford Motor Credit Co., 298 AD2d 496, 497 [2002]).

Inasmuch as plaintiff failed to timely challenge the propriety of defendant’s discovery demands, it is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). Discovery demands concerning matters relating to defenses which a defendant is precluded from raising are palpably improper even where the plaintiff did not specifically object thereto (see Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]). An affirmative defense that a professional service corporation fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), is not precludable. In the instant case, plaintiff has failed to demonstrate that defendant is seeking to obtain discovery relating to precluded defenses.

In view of the fact that defendant’s interrogatories sought information for the time period of January 1, 2002 until the date of the interrogatories, May 2, 2005, the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to its discovery demands is granted to the extent of directing plaintiff to respond to defendant’s written demands, and to provide defendant with management agreements, lease agreements, and the names and addresses of all landlords, limited to the time period between January 1, 2002 and May 2, 2005. Plaintiff’s remaining contentions lack merit.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: December 19, 2011